Minnesota Mut. Life Ins. Co. v. Marshall

• Decision Date: 28 December 1928
• Docket Number: No. 8153.,8153.
• Parties: MINNESOTA MUT. LIFE INS. CO. v. MARSHALL.
• Court: U.S. Court of Appeals — Eighth Circuit

29 F.2d 977 (1928)

MINNESOTA MUT. LIFE INS. CO. v. MARSHALL.

No. 8153.

Circuit Court of Appeals, Eighth Circuit.

December 28, 1928.

Wilfrid E. Rumble, of St. Paul, Minn. (Michael J. Doherty, Robert O. Sullivan, and Doherty, Rumble, Bunn & Butler, all of St. Paul, Minn., on the brief), for appellant.

Seth W. Richardson, of Fargo, N. D. (C. C. Wattam, of Fargo, N. D., on the brief), for appellee.

Before STONE and LEWIS, Circuit Judges, and MARTINEAU, District Judge.

MARTINEAU, District Judge.

This is a suit by the plaintiff, James Marshall, to recover the face of an insurance policy issued by the appellant upon the life of his son Arthur P. Marshall, Jr. The policy was dated October 14, 1925, and the annual premiums were due on October 14th of each year thereafter. The policy provided for a grace period of one month within which premiums after the first might be paid. The second annual premium which became due October 14, 1926, was not paid during the grace period. The insured died on November 29, 1926. He had been operated on for appendicitis on November 16th, and never recovered. The insurance company refused to pay the policy, claiming that it had lapsed for nonpayment of the second annual premium. The plaintiff recovered in the court below upon the theory that the insured became permanently and totally disabled prior to the expiration of the grace period, and that for that reason the second annual premium did not have to be paid.

Arthur P. Marshall, Jr., the insured, lived alone upon a North Dakota farm, three miles south of Ayr, where his father and mother resided. On this farm he kept horses, cows, hogs, and poultry. On the morning of November 16th, he came to his father's home sick, and upon the afternoon of the same day was operated upon for appendicitis in a hospital in Fargo, N. D. The doctors who operated upon him testified that his appendix had bursted, and that he was suffering from peritonitis, from which he died. Their opinion, based upon the conditions which they found during the operation, was that he had been suffering from appendicitis for several days prior to November 16th, the date of the operation; that on account of his sickness he would have been disabled and prevented from performing the ordinary duties necessary in caring for his farm and stock. His father testified that he was a careful, industrious farmer, and took good care of his stock, his buildings, and his dwelling house; but that when he visited the farm on November 16th he found that the stock apparently had not been fed for several days, the water tank dry, the stables uncleaned, the house in disorder, and without food.

The material facts are not disputed, except that the defendant contends that the testimony is insufficient to sustain the finding of the jury that the insured became permanently and totally disabled prior to November 14th, the expiration of the grace period.

The first question to be decided is: Did the provisions of the policy require a waiver of the payment of the premium which became due October 14, 1926, merely because the insured became totally and permanently disabled during the grace period?

The policy provided that if the insured, while the policy is in full force and effect, and without default in the payment of premiums, "shall become totally and permanently disabled, as hereinafter provided, and shall furnish satisfactory proof thereof, the Company will waive the payment of premiums thereafter becoming due. * * * Second: Upon the receipt of due proof of total and permanent disabilities as above defined, the Company will waive the payment of all premiums thereafter becoming due."

On the question of when the time of waiver of the payment of premiums begins under policy provisions similar to these quoted, there are two lines of decisions; one holding that proof of disability fixes the time when the waiver begins; and the other holding that the time of waiver is the time of disability, and that a reasonable time thereafter is allowed to make proof of such disability, and that if death occurs before the proof of disability is made, although after the due date of the premium, the insurance company is liable, where the disability arises before the due date of the premium, and continues until death.

It is unnecessary to attempt to distinguish the language of the policies upon which these differing opinions are based. They unquestionably put a different construction upon practically the same provisions of insurance policies. They differ as to the construction of...